Minister for Industry and Commerce v Hales

• Jurisdiction: Ireland
• Judgment Date: 01 January 1968
• Date: 01 January 1968
• Court: High Court

High Court.

Minister for Industry and Commerce v. Hales.

THE MINISTER FOR INDUSTRY AND COMMERCE

Complainant

and

FREDERICK HALES and Others, Defendants (1)

Statute - Interpretation - Evidence - Delegated legislative power - Minister empowered by statute to make regulations for purposes of statute - Whether power exercised - Whether such regulations ultra vires - Holidays (Employees) Act, 1961 (No. 33 of 1961) ss. 2, 3, 9, 10, 18, 19 - Holidays (Employees) Act, 1961 [Section 3 (3)] Regulations, 1963 (S.I. No. 139of 1963).

Case Stated.

The defendants, trustees of the Royal Liver Friendly Society, were prosecuted by summons in the District Court by the complainant, pursuant to ss. 19 and 20 of the Holidays (Employees) Act, 1961, for an alleged failure to pay one of the Society's insurance agents a sum equivalent to twice his normal weekly wage in respect of his annual leave contrary to the provisions of s. 10, sub-s. 2, and s. 18 of the Act. The provisions of the Act, as passed, did not apply to the Society's agents, but the complainant was given power by sub-s. 3 of s. 3 thereof1 to make regulations extending those provisions to any person or to any class or description of persons. The complainant purported to make regulations pursuant to such power bringing the Society's agents within the provisions of the Act, but the defendants contended that such regulations were ultra vires the said sub-section, and based that contention upon (inter alia) the definitions2 of the words "worker" and "employ" contained in the Act. The President of the District Court sought, by Case Stated, the opinion of the High Court as to whether or not he should convict the defendants. The Cast Stated was as follows:—

"Case Stated"

"Pursuant to the provisions of the Courts of Justice Act, 1924 (No. 10 of 1924), the Courts (Supplemental Provisions) Act, 1961 (No. 39 of 1961), and the Rules of the District Court."

"1. These were two complaints preferred in the Dublin Metropolitan District:—

(i) That the defendants and each of them, as trustees of the Royal Liver Friendly Society, named in accordance with the Insurance Acts of 1909 and 1936, did in or about the month of September, 1964, at No. 48 Upper O'Connell Street in the said District fail to allow annual leave to a non-domestic worker to wit Joseph Patrick Fitzsimons he being a non-domestic worker employed by the Royal Liver Friendly Society in respect of the employment year 27th August, 1963, to the 27th August, 1964, as required by s. 10 of the Holidays (Employees) Act, 1961, contrary to s. 11 and s. 19 of the Holidays (Employees) Act, 1961.

(ii) That the defendants and each of them, as the trustees of the Royal Liver Friendly Society named in accordance with the Insurance Acts, 1909 and 1936, did in or about the month of September, 1964, at No. 48, Upper O'Connell Street within the said District, fail to pay a non-domestic worker employed by the Royal Liver Friendly Society, to wit Joseph Patrick Fitzsimons, a sum equivalent to twice his normal weekly wage in respect of his annual leave for the year of employment of the said Joseph Patrick Fitzsimons as required by s. 10 of the Holidays (Employees) Act, 1961, contrary to s. 11 (sic) and s. 19 of the Holidays (Employees) Act, 1961."

"2. And on the 29th September, 1965, after hearing the evidence adduced by and on behalf of the complainant and of the defendants, the undersigned, being one of the Justices of the District Court assigned to said District and sitting as a Court of Summary Jurisdiction at the Metropolitan Courthouse, Morgan Place, Dublin, and having neither proceeded to a final adjudication of the said complaints nor decided certain questions of law arising herein, do hereby refer such questions of law to the High Court for determination."

"3. I adjourned the said complaints to the day of the sitting of the District Court next after the expiration of fourteen days from the day upon which the decision of the High Court shall be given."

"4. Wherefore I, the Justice aforesaid, in pursuance of the Statutes in such case made and provided do hereby state and sign the following Case for the opinion of the High Court."

Case

"5. (i) The dates in the complaints referred to in paragraph 1 (i) hereof were, by consent, amended by me to read "22nd July, 1963, to 21st July, 1964," in lieu of "27th August, 1963, to the 27th August, 1964."

(ii) The complaint referred to in paragraph (1) (ii) hereof was, by consent, amended by the insertion of the words "22nd July, 1963, to the 22nd July, 1964" after the word "employment" and the figures "18" after the figures "11.""

"6. I found the following facts:—

(a) Joseph Patrick Fitzsimons referred to in the complaints set out in paragraphs 1 (i) and 1 (ii) hereof was at all material times an agent of the Royal Liver Friendly Society for the Dublin Central District.

(b) Mr. Fitzsimons was remunerated on a commission basis and his pay depended on what premiums he collected. He also received bonuses, the amount of which in most instances also depended on the premiums collected. He earned, on average, approximately £15 15s. 0d. per week.

(c) Mr. Fitzsimons commenced his agency on 22nd July, 1960, and on the completion of 12 months service with the Society (on 22nd July, 1961) he was entitled to take two weeks holidays which he took in the month of August, 1961. He had previously notified the Society of his intention to take these holidays. The Society automatically granted him permission to take these holidays. Excepting one year since 1961 Mr. Fitzsimons took holidays in each subsequent year after 1961 and on completion in each such year of a full year's service. Such holidays were taken in the month of August or September. He was never offered holidays and he never received any notice in regard to holidays and his right to take holidays arose when he had completed his service for 12 months.

(d) In the month of September, 1964, Mr. Fitzsimons took two weeks' holidays in respect of the employment year July, 1963/July, 1964. This is the period in respect of which the complaints, as amended, refer. Mr. Fitzsimons did not receive any remuneration for these two weeks holidays. He was not allowed annual leave with pay nor did he receive any pay other than what he earned by way of commission.

(e) The premiums accruing during the period when Mr. Fitzsimons was on holiday in each of the four years from 1961 were collected by him, in part before going on holidays, in part after he had returned from holidays and the remainder by other agents of the Society acting on Mr. Fitzsimons' behalf.

(f) While Mr. Fitzsimons was at all material times an agent of the Royal Liver Friendly Society, whereby he was authorised to collect premiums on policies of life insurance and to canvass for new business, there were no days or hours of employment laid down. The times at which he would do this work was left entirely to himself. There was no control directly over him either by the parent office in Liverpool or by the office in Dublin. He could carry out his duties, for instance, early on St. Patrick's day or on any public holiday. He was never required to give a return of the hours worked by him nor was he ever asked about these hours. He paid into the Society the premiums collected by him every week and on the occasions when he took holidays he furnished a blank slip."

"7. Mr. Niall McCarthy, S.C. (with whom Mr. Frederick R. Morris appeared, instructed by Mr. Charles E. Coonan, Assistant State Solicitor) on behalf of the prosecution made the following submissions:—

(a) Statutory Instrument No. 139 of 1963, amended the Holidays (Employees) Act, 1961, in certain respects so as to bring within the provisions of the Act wholetime insurance agents. Mr. McCarthy referred to the failure of the Royal Liver Friendly Society to grant holidays to Mr. Fitzsimons or in the alternative to pay Mr. Fitzsimons an amount equal to two weeks salary. He directed the Court's attention to the nature of the contract of employment and to the fact that Mr. Fitzsimons was employed wholetime by the Society.

(b) At the conclusion of the evidence substantial correspondence, which passed between the Royal Liver Friendly Society and the Minister for Industry and Commerce, was opened to the Court. The effect of this correspondence was to demonstrate that the Minister for Industry and Commerce, in making Statutory Instrument No. 139 of 1963, had taken cognizance of representations made to him by the Royal Liver Friendly Society and that the Society had notice of the fact that a Statutory Instrument was directed at, amongst others, the Society's wholetime insurance agents."

"8. In reply to the submissions of Counsel for the defendants, which are set out in paragraph 10 hereof, Mr. McCarthy referred to the judgment of Kennedy C.J., in Graham v.Minister for Industry & Commerce(3). He accepted for the purpose of this prosecution that Mr. Fitzsimons was under a contract for services. He submitted that once the Minister for Industry and Commerce deemed a person to be a "worker" within the meaning of the Act such person was automatically within the scope of the Act."

"9. In regard to the question of the validity of Statutory Instrument No. 139 of 1963, Mr. McCarthy referred to Volume 36, page 490, para. 742 of the Simonds Edition of Halsbury's Laws of England and cited the following cases:Petrie v. Red Bank Manufacturing Co. Ltd.(4); Roberts v.Wm. Gardner & Sons(5); Hobbs v. Royal Arsenal Co-Operative Society(6) and O'Brien v. Tipperary Board of Health(7).

"10. Mr. E. C. Micks, S.C. (with whom Mr. Lionel J. Winder appeared, instructed by Messrs. W. J. Shannon & Co. Solicitors) made the following submissions on behalf of the defendants:—

(a) In regard to the principles of interpretation he referred to s. 13 of the Interpretation Act, 1937; Halsbury (Simonds Edition) Vol. 36, page 493, para. 745; to...